Tuesday, February 27

Senators release border-Ukraine deal that would allow the president to pause U.S. asylum law and quickly deport migrants

Washington — A trio of senators on Sunday released a bipartisan immigration agreement with the White House that would give the president far-reaching powers to clamp down on unlawful border crossings, including the authority to turn away migrants without allowing them to request asylum.

The deal, which has been months in the making, would overhaul American border policy by restricting access to the asylum system during spikes in illegal immigration, making it harder for migrants to pass initial asylum screenings and ramping up deportations of those found to be ineligible for U.S. refuge. The agreement would preserve asylum processing at official border crossings and allow migrants who pass their asylum interviews to work in the U.S. legally.

The agreement was negotiated by Republican Sen. James Lankford, Democratic Sen. Chris Murphy, independent Sen. Kyrsten Sinema and top Biden administration officials after Republican lawmakers demanded restrictions to U.S. asylum law in exchange for supporting more military aid to Ukraine. If enacted, the bipartisan compromise would be the first major update to the U.S. immigration system since the 1990s, the last time Congress passed a large-scale immigration law.

While the deal will likely garner the support of many Democrats and some Republican senators, including Minority Leader Mitch McConnell, its prospects in the GOP-led House are much less certain. House Speaker Mike Johnson and other conservatives in the chamber have denounced elements of the negotiations in the Senate, instead calling on President Biden to use his executive power to deter migrants from coming to the U.S.

On Sunday, Johnson said the proposal would be “dead on arrival” if it reaches the House. “This bill is even worse than we expected, and won’t come close to ending the border catastrophe the President has created,” he added.

Nonetheless, the agreement represents a major pivot on immigration by Mr. Biden. Right after taking office three years ago, he promised to “restore” the U.S. asylum system and dismantle Trump-era border policies that “contravened our values and caused needless human suffering.” But after facing record levels of migrant apprehensions at the southern border and a growing chorus of criticism from Democratic leaders in communities struggling to help migrants, Mr. Biden and his administration have embraced drastic restrictions on asylum.

National Guard Continues Border Security In Texas
U.S. Border Patrol agents guard migrants that crossed into Shelby Park as they wait to be picked up for processing on February 4, 2024, in Eagle Pass, Texas.

Michael Gonzalez/Getty Images

In fact, the deal brokered by the White House would be one of the toughest border and immigration laws in modern history and would not legalize any of the estimated 11 million immigrants living in the U.S. without permission, an element of comprehensive immigration reform long championed by Democratic lawmakers.

Senate Majority Leader Chuck Schumer praised the deal as a “monumental step towards strengthening America’s national security abroad and along our borders” and in a statement called it “one of the most necessary and important pieces of legislation Congress has put forward in years to ensure America’s future prosperity and security.” He noted that the agreement also contains funding to equip Ukraine in its war against Russia, as well as military aid for Israel and humanitarian assistance for Palestinians in Gaza.

He called on the Senate to act and said he would schedule the first vote on the measure for Wednesday.

Meanwhile, McConnell expressed his gratitude to Lankford for working on the bill. “The Senate must carefully consider the opportunity in front of us and prepare to act,” he said in a statement.

A power to “shut down” asylum processing

If the bill is passed by Congress and signed into law by the president, the federal government would gain a new sweeping emergency authority to reject most migrants when crossings along the southern border reach certain thresholds. 

The power could be activated on a discretionary basis after daily average border crossings top 4,000 over seven days. The federal government would be required to use the authority when daily average border crossings reach 5,000 over seven days or 8,500 in a day.

The power, which Mr. Biden has referred to as an authority to “shut down the border,” would allow the president to effectively pause asylum law, which currently allows most migrants on U.S. soil to request asylum, even if they entered the country illegally.

Migrants who illegally cross into the U.S. when this power is invoked would not be allowed to seek asylum. They would be summarily deported from the U.S., unless they passed screenings for forms of humanitarian refuge that are more difficult to obtain, including protection under the United Nations Convention Against Torture. 

Sen. James Lankford
Sen. James Lankford speaks to reporters in the Senate Reception Room on January 31, 2024.

Bill Clark/CQ-Roll Call, Inc via Getty Images

Those who enter the U.S. illegally repeatedly when this power is invoked would be banned from the country for one year. Unaccompanied children are exempt from this emergency measure.

The authority would sunset after three years. There would also be limits on the number of days on which this power can be used. For example, it could not be used for more than 270 days during the first year. The emergency measure would be deactivated when the average number of daily border crossings drops by 75%.

When the emergency power is triggered or invoked, access to the U.S. asylum system would be preserved at official border crossings. In fact, the bill mandates that the government be able to process at least 1,400 asylum-seekers at ports of entry each day when the power is activated.

Expedited asylum reviews and tighter rules

This proposal would create a new asylum review process for migrants who are not deported under the emergency authority.

The process is designed to ensure migrants receive final decisions on their asylum cases within months instead of the current years-long average. Eligible migrants would be granted asylum much more quickly, while those found to be ineligible would be deported more expeditiously.

Migrants placed in this new process would be released under so-called “alternatives to detention” programs that track them, through ankle monitors and other means, while their cases are reviewed. The process would be fully adjudicated by asylum officers at U.S. Citizenship and Immigration Services instead of the Justice Department immigration courts, which are overseeing more than 3 million pending cases.

A U.S. official told CBS News the Biden administration would mainly use this authority on migrant families with children, a population the government cannot generally detain due to operational, legal and humanitarian considerations. Migrant adults would continue to be detained and deported under the expedited removal authority or a process known as voluntary return, unless they qualify for asylum.

Sen. Kyrsten Sinema on “Face the Nation,” Feb. 4, 2023.

CBS News

The standard to pass preliminary asylum interviews, known as credible fear screenings, would be raised in an attempt to weed out those who are not fleeing persecution or torture earlier on in the process. Migrants would also be ineligible for asylum if officers determine that they could have relocated to a different part of their home country to avoid being persecuted.

Migrants who pass their humanitarian screenings with U.S. asylum officers — which will be harder to pass given the new standards — will be allowed to work in the country immediately. The change would likely be welcomed by Democratic leaders in New York City and other places struggling to house migrants relying on local services because they can’t work in the country legally.

Other proposed changes 

The compromise forged by the trio of senators and the White House would authorize billions of dollars to fund the surge in resources and personnel needed to implement the proposed border policy changes. The Department of Homeland Security would receive money to hire additional border agents and asylum officers, as well as to reimburse cities and organizations housing migrants.

Notably, the bill would not severely restrict the humanitarian parole authority, which the Biden administration has used to resettle and release more than 1 million migrants and refugees in the U.S.

While the proposal would restrict the use of parole to release migrants at land borders, it would not affect Biden administration parole programs that allow Americans to sponsor the entry of refugees from Ukraine or migrants from Cuba, Haiti, Nicaragua and Venezuela.

The deal would also expand legal immigration levels. It would allocate 250,000 new immigrant visas over 5 years — or 50,000 each year — for immigrants sponsored by their American family members or U.S. employers.

The tens of thousands of Afghans brought to the U.S. after the fall of Kabul in 2021 would be offered permanent American residency. Right now, many of them only have temporary permission to live and work in the U.S. The agreement would create a new refugee category to evacuate and resettle Afghans abroad who assisted the U.S. military.

Another provision would offer work permits and deportation protections to the children of H-1B visa holders who are at risk of losing the status derived from their parents.

Under the proposal, the government would also be required to offer lawyers to unaccompanied children who are 13 or younger. It would allocate $350 million to fund this.

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